Legal Risks in Bringing Employees Back During the Coronavirus Pandemic

By Lane V. Erickson, Idaho Business Attorney

On the date this article was written, in June 2020, the number of Coronavirus cases being reported in Idaho were rising. However, the Idaho government chose to move forward with its declared stages of reopening. Currently, Idaho is in stage 4 of the plan which allows businesses to reopen and operate. Because of this, many employees are returning to work in shops, offices, restaurants, and factories.

So far, there is no vaccine or cure yet for the Coronavirus. Because of this, there are two things that are certain. The first is that people, including employees, will continue to be exposed to the Coronavirus and will get sick. The second is that as a result of getting sick, it’s possible that employees may go to court to seek compensation for health care bills and lost compensation and to obtain safer working conditions.

Nationally, groups of employees have already filed suits and claims against large companies such as Amazon, McDonald’s and others. The claims being made are that these employers are not doing enough to keep their employees and families free of being exposed to the Coronavirus.

The purpose of this article is to describe our current circumstances and the legal risks that could exist for employers who bring their employees back to work during the Coronavirus pandemic. This article will also list certain things that employers can do to reduce these risks.

An employer has a basic duty to each of its employees to keep the workplace safe. Federal, state, and local regulations require a safe workplace in almost all situations but more particularly for those who are employed in jobs as workers around machinery and equipment. However, during the Coronavirus pandemic, all workplaces, including offices, shops, restaurants, and other places that don’t involve the use of machinery and equipment must also implement and maintain safe working conditions.

An employee does have a right to sue an employer if the employer fails to keep the workplace safe in any reasonable way. Although the Coronavirus pandemic has only been around for a few months, it’s likely that as time goes on, and incidences of preventable exposure are discovered, litigation concerning Coronavirus negligence will likely occur. It’s important for an employer to be aware of this possibility as it brings its employees back to work at a time when there is still no vaccine or cure.

The true first line of defense for any employer is workers compensation when it comes to an employee who is injured on the job. However, it is still unclear whether worker’s compensation cases involving the Coronavirus, and employees who are exposed or become infected by the virus at work will succeed. If they were to succeed, it’s obvious that a massive number of claims would be made which could hobble or shut down the worker’s compensation system.

The good news is that worker’s compensation doesn’t allow for any type of punitive damages which are usually sought in regular litigation cases when a person acts with unreasonable recklessness concerning the health and safety of others. Additionally, it is still unclear whether in Idaho, the coronavirus would be defined as an occupational disease, containing the workers compensation statutory provisions.

It is likely that there will be some Federal regulation or statutory scheme put in place concerning worker’s compensation and employees who are exposed and/or affected by the coronavirus while at work. There is already a great deal of talk about this in the federal legislature. Given the quick action to create financial stimulus plans it’s likely that the federal legislature will provide statutes or regulations concerning protecting employees through extending workers compensation benefits for the Coronavirus as well.

However, the very best thing that an employer can do is to implement safety precautions and procedures. By doing this, an employer will have some evidence of the fact that they are not acting either negligently or recklessly.

The first thing that an employer should do is provide safety gear such as masks, face shields or other clothing or equipment to protect its employees against exposure to and the spread of the Coronavirus. Additionally, requiring safe physical distancing between employees should also be implemented. Furthermore, employers should regularly check their employees to make sure that no one is coming to work who has any symptoms related to the Coronavirus.

If an employee is diagnosed with the Coronavirus, the employer should immediately send that employee home and sanitize the work area of that employee. The employer should also have any additional employees who were exposed be tested for the virus and quarantine them until their test results come back. Additional quarantining of exposed employees may be necessary and should follow all stated medical requirements.

It’s possible that an employer could be exposed legally to claims from employees during the Coronavirus pandemic. However, there are many things that an employer can do to keep its employees safe and to protect itself against these types of claims. AS the federal and state laws and regulations are changing rapidly, we are providing guidance to our employer clients regularly, and we are confident that we can help you too. If you have questions or concerns about what you should be doing, don’t hesitate to contact us.

Our team of Idaho business lawyers can help you with any of your business structure or operation needs. Whether you are seeking to create a new business or review a current business, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho business problems.